James R. Viglione, individually and as successor-in-interest for Jeanne M. Viglione vs. Dignity Health - Glendale Memorial Hospital and Health Center, et al.

issue of whether the economic loss rule bars Plaintiff's fraud claim.

B. Motion to Strike

Furthermore, as the sole remaining cause of action in the instant action is the alleged breach of contract cause of action against Aveson, and as punitive damages in an action for the breach of an obligation arising from a contract under Code of Civil Procedure section 3294(a), the motion to strike the punitive damages prayer from the FAC is granted.

Moreover, as the alleged breach of the License Agreement would not support an award of punitive damages as a matter of law, the Court on its own motion shall strike the remaining punitive damages allegation, Paragraph 20, from the FAC. (Code Civ. Proc, Sec. 436, subd. (a).)

(1) Defendant Ian McFeat 's Demurrer to Plaintiff's First Amended Complaint is SUSTAINED without leave to amend. (2) Defendant's Motion to Strike Portions of Plaintiff's First Amended Complaint is GRANTED. Paragraph 20 and Prayer for Relief, Paragraph 34.2, are hereby stricken from the FAC.

individually and as successor-in-interest for Jeanne M. Viglione vs. Dignity Health - Glendale Memorial Hospital and Health Center, et al.

Demurrer to Plaintiff's First Amended Complaint

Moving Party: Defendant Sameer Bajaj, M.D.

Responding Party: Plaintiff James R. Viglione, individually and as successor-in-interest for Jeanne M. Viglione

Tentative Ruling: Sustain

BACKGROUND

On December 12, 2025, Plaintiff James R. Viglione, individually and as successor-in-interest for Jeanne M. Viglione ("Plaintiff") filed a complaint against Defendants Aakash N. Bodhit, M.D. ("Dr. Bodhit"), Sameer Bajaj, M.D., Dennis G. Chang, D.O. ("Dr. Chang"), Dignity Community Care dba Glendale Memorial Hospital and Health Center [erroneously sued as Dignity Health - Glendale Memorial Hospital and Health Center] ("Dignity Community Care") and Doe defendants 1 through 100, alleging the following causes of action: (1) wrongful death based on medical malpractice (CCP Sec. 377.60); (2) medical malpractice through a survival action (CCP Sec. 377.20, 377.34); (3) negligent infliction of emotional distress ("NIED"); (4) fraudulent concealment; and (5) intentional misrepresentation/fraud.

On April 10, 2026, the Court sustained Dignity Community Care's demurrer to the third, fourth, and fifth causes of action with leave to amend.

On April 30, 20206, Plaintiff filed a first amended complaint ("FAC"), alleging the same causes of action in the original complaint.

Defendant Sameer Bajaj, M.D. ("Defendant") now demurs to the third cause of action for NIED. Plaintiff opposes, and Defendant replies.

ANALYSIS

I.

Legal Standard

A. Demurrer

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (Code Civ. Proc. Sec.Sec. 422.10, 589; see, also, Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)

It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Donabedian, supra, 116 Cal.App.4th at 994.)

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.)

"All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action." (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.)¿

In a demurrer, the court "may also look to exhibits attached to the complaint for operative facts. [Citation.] And because the 'allegations that we accept as true necessarily include the contents of any exhibits attached to the complaint, . . . in the event of a conflict between the pleading and an exhibit, the facts contained in the exhibit take precedence over and supersede any inconsistent or contrary allegations in the pleading.' [Citation.]" (Nealy v. County of Orange (2020) 54 Cal.App.5th 594, 596-97.)

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)

The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.)

However, "[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend." (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245.)

II. Meet and Confer

Per the declarations of Defendant's counsel Shari I. Weintraub, it does not appear that counsel for the parties met and conferred in person, via telephone, or by video conference. (See Weintraub Decl. P. 9.)

Nevertheless, "[a] determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer." (Code Civ. Proc. Sec. 430.41, subd. (a)(4).)

III.

Discussion

A. NIED

"[A] plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if, but only if, said plaintiff: (1) is closely related to the injury victim; (2) is present at the scene of the injury producing event at the time it occurs and is then aware that it is causing injury to the victim; and (3) as a result suffers serious emotional distress--a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances." (Thing v. La Chusa (1989) 48 Cal.3d 644, 667-668; accord Downey v. City of Riverside (2024) 16 Cal.5th 539, 550.)

"Neither our precedent nor considerations of tort policy support requiring plaintiffs asserting bystander emotional distress claims to show contemporaneous perception of the causal link between the defendant's conduct and the victim's injuries." (Downey, supra, 16 Cal.5th at p. 560.)

Nevertheless, the Supreme Court's analysis in Bird v. Saenz (2002) 28 Cal.4th 910 "remains the controlling precedent for negligent infliction of emotional distress claims arising from the provision of deficient medical care to a close relative." (Id. at p. 560, fn. 11.)

" Bird placed particular emphasis on how difficult--often impossible--it generally is for laypersons to recognize in the moment that a course of medical treatment is causing injury. Even when plaintiffs are present at the scene of the injury-causing event and observe conduct that they later realize caused injury to a close relative, their lack of medical knowledge will ordinarily keep them from being 'then aware that it [was] causing injury to the victim.' [Citation]." (Downey, supra, 16 Cal.5th at p. 554.)

"In such cases, the injury-causing events or conduct are not traumatizing because they are perceived as injury-causing only in retrospect, when the observer is affected by the event's results." (Ibid.)

" Bird itself made clear that the injury caused by medical negligence is different in this regard from many other types of injury-producing events. We explained that the invisibility of injury-causing events resulting from deficient medical care makes a typical medical negligence case distinguishable from, for instance, a case arising from 'an explosion, traffic accident, or electrocution.' [Citation]." (Ibid.)

Here, Plaintiff alleges the following facts in his complaint: On or about June 6, 2025, the decedent sought care for right upper extremity weakness from defendants, and Defendant "failed to appreciate the decedent's high risk of bleeding despite her ongoing hypoxia, recurrent hemoptysis, and anemia, and proceeded with a right carotid stent placement on June 13, 2025, without first stabilizing her critical condition." (FAC P.P. 2, 6, 8.)

Defendant failed to order urgent imaging for the decedent "or evaluate for post-procedural complications after the decedent immediately developed new neurological deficits" and instead "dismissed her symptoms as mere 'blood pressure variation,' without investigating the cause of this variation." (Id. P. 8.)

Plaintiff also alleges that, "[t]hroughout the evening, defendants, and each of them, failed to recognize the severity of the decedent's worsening condition until she became critically unstable and required emergent intubation. Only at that point labs were drawn, revealing catastrophic blood loss, and a delayed ultrasound finally identified a massive intraabdominal arterial bleed." (Ibid.)

Plaintiff alleges that the failure to timely recognize, investigate, and treat the decedent's rapid deterioration resulted in her death on June 14, 2025. (Id. P.P. 8 - 9.)

In support of his NIED cause of action, Plaintiff alleges that he was the decedent's son and that he was "present at his mother's bedside for many hours during her hospitalization including specifically on June 13-14, 2025, beginning shortly after her right internal carotid artery stenting procedure and continuing as her condition progressively worsened" and observed his mother's deteriorating health at that time. (FAC P.P. 21 - 22.)

Although Plaintiff sets forth new allegations as to the "unmistakable signs that his mother was dying" without receiving any medical attention and as to his contemporaneous knowledge of the cause of his mother's death, these allegations are largely conclusory and fail to set forth facts showing that the symptoms and nature of decedent's deteriorating condition obviously required medical treatment. (FAC P.P. 23 - 25.)

Nor do the facts set forth in the FAC show a complete lack of medical attention by Dr. Bajaj, as Plaintiff alleges that Defendant and Dignity Community Care's staff were monitoring her condition throughout this period of time, despite the conclusory allegation that "Plaintiff understood in real time, with every passing minute, that defendants' refusal to act was directly causing his mother to deteriorate, become paler and less responsive, and fade away and die right in front of him." (Id. P. 24; Downey, supra, 16 Cal.5th at p. 552 [" Bird clearly settled this much: There can be no recovery for emotional distress caused by the negligent infliction of injury on a third party unless the plaintiff contemporaneously understands that the injury-causing event is in fact causing injury to the victim."]; Bird, supra, 28 Cal.4th at p. 917 ["Except in the most obvious cases, a misdiagnosis is beyond the awareness of lay bystanders."].)

Accordingly, in liberally construing the FAC, the Court finds that Plaintiff failed to sufficiently allege facts establishing his contemporaneous knowledge that Defendant's complete failure to provide medical assistance was the cause of his mother's death. (Compare Ochoa v. Superior Court (1985) 39 Cal.3d 159, 170 with Bird, supra, 28 Cal.4th at pp. 919 - 920.)

Thus, as Plaintiff failed to show any reasonable possibility of stating a good cause of action for NIED against Defendant, the demurrer to this cause of action is sustained without leave to amend.

RULING

Defendant Sameer Bajaj, M.D.'s Demurrer to Plaintiff's First Amended Complaint is SUSTAINED without leave to amend. | Home -->